Case 8:09-cv-00082-DOC-AN Document 78 Filed 10/01/2009 Page 1 of 14

Case 8:09-cv-00082-DOC-AN Document 78 Filed 10/01/2009 Page 1 of 14
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3 Dr. Orly Taitz, Attorney-at-Law
29839 Santa Margarita Parkway, Suite 100
4 Rancho Santa Margarita CA 92688
Tel.: 949-683-5411; Fax: 949-766-7036
5 California State Bar No.: 223433
6 E-Mail: dr_taitz@yahoo.com
7 UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
8
Captain Pamela Barnett, et al., §
9 Plaintiffs, §
§ Civil Action:
10 v. §
§ SACV09-00082-DOC
11 Barack Hussein Obama, et al. §
Defendants. §
12
13 Plaintiffs’ Sur-Reply: the Ninth Amendment, etc.
14 In their Reply, Doc. 72, the Defendants first attack Plaintiffs’ response (at p. 1
15 of their Reply, Case 8:09-cv-00082-DOC-AN, Doc. 72, 09/25/2009, p. 2 of 11) by
16 contending that, “Plaintiffs’ Reliance on the Ninth Amendment is Misplaced.” In
17 support of this assertion, the Defendants cite not one single Supreme Court case, but
18 instead a line of 9th Circuit Cases which goes back, ultimately, not to any text of the
19 constitution itself, but to Lawrence H. Tribe’s 1998 textbook entitled American
20 Constitutional Law1. Tribe’s quoted statement concerning the Ninth Rule as a
21 rule of constitutional construction inexcusably contradicts the Supreme Court’s
22 repeated holdings (relevant to the construction of Article II, Sec. 1 qualifications for
23 President, as well as the Ninth Amendment, both of great importance to the
24 resolution of this case) that, "it cannot be presumed that any clause in the
25 constitution is intended to be without effect." Marbury v. Madison, 5 U.S.
26 1
The Defendant’s line of Ninth Circuit cases is, however, not at all exhaustive, and excludes earlier
holdings from this Circuit such as, “Rights under Ninth Amendment are only those so basic and
27 fundamental and so deeply rooted in our society to be truly "essential rights," and which nevertheless,
cannot find direct support elsewhere in Constitution. United States v Choate (1978, CA9 Cal) 576 F2d
28 165, 78-2 USTC P 9620, 57 ALR Fed 678, cert den (1978) 439 US 953, 58 L Ed 2d 344, 99 S Ct 350.
Plaintiffs contend that the right to limit the Presidency exclusively to “natural born citizens” is one of those
that can indeed be described as so deeply rooted in our society as to be an “essential right.”
Plaintiffs’ Sur-Reply to Defendants’ (Document 56) DR. ORLY TAITZ, FOR THE PLAINTIFFS
Motion to Dismiss, and Request for
Judicial Notice of certain Learned Treatises
1 29839 SANTA MARGARITA PARKWAY
RANCHO SANTA MARGARITA CA 92688
1
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3 137; 2 L.Ed. 60; 1 Cranch 137, 174 (1803). In interpreting the Constitution, "real
4 effect should be given to all the words it uses." Myers’ Administratrix v.
5 United States, 272 U.S. 52, 151; 47 S. Ct. 21; 71 L. Ed. 160 (1926)(the Myers case
6 addresses whether Congress may enact legislation withholding the removal power of
7 executive branch officers from other branches of government, see below).
8 More consistent with the Federalist Papers and Marbury is the theory of
9 the Ninth Amendment advanced by Professor Randy E. Barnett. Barnett takes the
10 position that the Ninth Amendment operates as an active source of rights and cannot
11 be “void where prohibited by law”. Plaintiffs submit that Barnett’s 2004 learned
12 treatise Restoring the Lost Constitution: the Presumption of Liberty,
13 published by the Princeton University Press, is both admissible and susceptible to
14 judicial notice pursuant to FRE 803(18) and Plaintiffs ask this Court to take judicial
15 notice of Barnett’s significant contribution to Ninth Amendment jurisprudence.
16 Accordingly, Plaintiffs incorporate Barnett’s book by reference as if filed as a matter
17 of record as supplemental argument in support of their contentions in this case.
18 Based on the Ninth Amendment, Barnett proposes to reverse the modern
19 trend by applying a philosophy of judicial review true to its Constitutional origins: a
20 presumption of liberty, which questions every exercise of power. Barnett concedes
21 the need for reasonable restrictions on some actions; for example, when such
22 regulations "are shown to be necessary to prevent the future violation of rights of
23 others." When a court is faced with a hard case, he feels that in order for the rule of
24 law to be maintained, society must accept the outcome even when the ending is not a
25 "happy" one.
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3 Such exactly is the case of Barnett2 v. Obama, a hard case whose proper
4 result society must accept even if the ending is not a happy one, at least not for most
5 of Obama’s supporters in the last election. In the present case, the need for
6 reasonable regulation is that which was established in the Constitution, namely that
7 the President must be a “natural born citizen” as that term was interpreted and
8 understood at the time of the adoption of the Constitution, which incorporates
9 Emmerich de Vattel’s “Law of Nations” as one of its own internally extrinsic
10 sources (Article I, §8, http://www.constitution.org/vattel/vattel_01.htm).
11 Plaintiffs also cite and rely upon Vattel’s Law of Nations, at the website cited
12 above, and would both offer it into evidence under Rule 803(18) of the Federal Rules
13 of Evidence, and ask the Court to take Judicial Notice of this ancient treatise as well,
14 on the grounds that the definitions contained therein regarding Natural Born Citizen
15 are those upon which this court must rely in deciding the present case.
16 Since the Defendants have cited a line of cases originating with a law
17 professor’s textbook, however, there is no reason why Plaintiffs should not equally
18 rely on legal academic texts, and Plaintiffs prefer the writings of Barnett to those of
19 Tribe, and ask this Court to take judicial notice of Randy E. Barnett’s equally
20 learned treatise published in 2004, along with his earlier law review article: “The
21 Ninth Amendment and Constitutional Legitimacy,” 64 Chicago-Kent L. Rev. 37
22 (1988). The fundamental relevance of Barnett’s treatise on the Ninth Amendment is
23 that where the Constitution creates a rule as clear as the citizenship requirements of
24 Article II, the Court should presume and infer that the Ninth Amendment (taken
25 together with the First Amendment “right to petition for redress of grievances) not
26 merely affords guarantees a remedy belonging to the people and justiciable, and
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Plaintiff Captain Pamela Barnett is no known relation to Professor Randy E. Barnett.
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3 redressable in the courts. Defendants completely fail to address the First
4 Amendment aspect of Plaintiffs’ rights to enforce the constitution, to enforce every
5 clause and provision, including Article II, §1, Clause 5 re: “natural born” citizenship.
6 Even more significant than Barnett’s work, however, is the vitality of the Ninth
7 Amendment as a key factor in the Supreme Court’s landmark 2008 District of
8 Columbia v. Heller, 128 S.Ct. 2783; 171 L.Ed.2d 637 (2008). While the Ninth
9 Amendment was indeed used in that case as an analogy for rule of construction and
10 interpretation, the Court upheld the independence of the First, Fourth, and Ninth
11 Amendments as sources of independent, individual power by writing: “All three of
12 these instances unambiguously refer to individual rights, not
13 "collective" rights, or rights that may be exercised only through
14 participation in some corporate body.” 128 S.Ct. at 2790, 171 L.Ed.2d at 650.
15 D.C. v. Heller involves “substantive due process”, because it addresses
16 substantive rights protected by the Constitution, even though the Fifth and
17 Fourteenth Amendments are not precisely cited as central rules of decision in that
18 case. When the Defendants, however, state at p. 1, ll. 22-24, and p. 2, ll. 2-7, that
19 “…the Ninth Amendment does not independently create a constitutional right for
20 purposes of stating a claim” and “the Ninth Amendment is ‘not a source of rights as
21 such’”, the Defendants are ignoring the key role and importance of the Ninth
22 Amendment in modern cases recognizing substantive due process rights starting with
23 Griswold v. Connecticut, 381 U.S. 479; 85 S.Ct. 1678; 14 L.Ed.2d 510 (1965),
24 wherein (according to a search on Lexis) the Ninth Amendment is cited 55 times (see
25 especially the Ninth-Amendment centered concurrence of Justices Goldberg, Harlan,
26 Brennan, and Earl Warren) at 381 U.S. 486, 85 S.Ct. 1682, 14 L.Ed.2d 516).
27 As is well known, Griswold v. Connecticut stands as the starting point of a
28 very long line of cases, including most notably Stanley v. Illinois, 405 U.S. 645; 92
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3 S.Ct. 1208; 31 L.Ed.2d 551 (1972), Roe v. Wade, 410 U.S. 113; 93 S.Ct. 705; 35
4 L.Ed.2d 147 (1973); Planned Parenthood v. Casey, 505 U.S. 833; 112 S.Ct.
5 2791; 120 L.Ed.2d 674 (1992); Troxel v. Granville, 530 U.S. 57; 120 S. Ct. 2054;
6 147 L. Ed. 2d 49 (2000); and Lawrence v. Texas, 539 U.S. 558; 123 S.Ct. 2472;
7 156 L.Ed.2d 508 (2003).
8 In each of these cases (with the sole exception of Lawrence), the Ninth
9 Amendment played a significant if not decisive role in conjunction with the Fifth and
10 Fourteenth to establish a “broad statement[] of the substantive reach of liberty”
11 (Lawrence, 539 U.S. at 564, 123 S.Ct. at 2476) into subjects such as contraception,
12 abortion, sex generally, and family structure in particular regarding which there is no
13 express language in the Constitution whatsoever. How much stronger is the
14 inference that there is an actionable “liberty interest” under the First, Fifth, and
15 Ninth Amendments in the enforcement of the expressly protective clauses of the
16 Constitution e.g. the “natural born citizenship” requirements of Article II, Section 1?
17 Redressability & Political Questions: Reply page 3, lines 1-3
18 Defendants further assert that the Plaintiffs have not addressed the question of
19 “redressability” and then they effectively combine this contention with the Political
20 Question Doctrine at page 6 reasoning that, “questions of impeachment or removal
21 from office of a President are political questions because they are textually committed
22 by the Constitution to branches of government other then the judiciary.”
23 Myers’ Administratrix, cited above, is another “root” case giving rise to a
24 long line of cases, most notably Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181,
25 92 L.Ed.2d 583 (1986) and Morrison v. Olsen, 487 U.S. 654, 108 S.Ct. 2597, 101
26 L.Ed.2d 569 (1988). The relevance of these cases, concerning the removal of
27 executive branch officials (all cases relating to officers lower than Cabinet level
28 positions, and none having to do with the express terms of Constitutional eligibility of
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3 any particular officer), is---even assuming Defendants were correct that Congress had
4 ever intended to deprive the judiciary of power to adjudicate the Constitutional
5 eligibility of any elected officer----whether Congress actually possesses the power to
6 limit the removal of any executive branch official to itself by and through the
7 impeachment process. The answer would seem to be a resounding “NO.”
8 Congress cannot reserve for itself the power of removal of an
officer charged with the execution of the laws except by
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impeachment. To permit the execution of the laws to be
10 vested in an officer answerable only to Congress would, in
practical terms, reserve in Congress control over the
11 execution of the laws.
12 Bowsher v. Synar, 478 U.S. 714, 726, 106 S.Ct. 3181, 3187-88, 92 L.Ed.2d 583,
596 (1986), and Morrison v. Olson, 487 U.S. 654, 685-6; 108 S.Ct. 2597; 101
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L.Ed.2d 569, 602 (1988).
14 The Supreme Court in Morrison took the extra step, relevant to the present
15 case, of evaluating the role of the judiciary in the separation of powers doctrine:
16 While the Constitution diffuses power the better to secure liberty, it also
17 contemplates that practice will integrate the dispersed powers into a
workable government. It enjoins upon its branches separateness but
18 interdependence, autonomy but reciprocity. Youngstown Sheet &
19 Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (concurring opinion).
487 U.S. at 694, 108 S.Ct. at 2620-2621, 101 L.Ed.2d at 607.
20
The Morrison Court’s citation to Youngstown is extremely significant,
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because Youngstown was a case focusing on Presidential abuse of power and
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usurpation of authority without recent historical parallel, until approximately
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January 21, 2009.
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In Youngstown, the Supreme Court affirmed the power of a District Court
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to enjoin unconstitutional usurpation of power (and seizure of property) by the
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American President Harry S. Truman. Youngstown stands for the proposition that
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unconstitutional acts on the part of the President can be enjoined by a District Court.
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3 So the Plaintiffs’ injuries are judicially redressable: under Youngstown the Court
4 can, at the very least, enjoin President Barack Hussein Obama from acting in the
5 absence of constitutional authority to do so. Under Bowsher and Morrison, the
6 Court can review the President’s qualifications for office and remove him if good
7 cause be shown which would reaffirm the constitutional ethics and standards
8 underlying the legitimacy of the Presidency. Those cases, obviously, concerned the
9 removal of inferior officers, but the logic of separation of powers dictates that ONLY
10 the Article III judiciary, as the final refuge repository of the sovereignty of the people
11 can possibly supervise and review the constitutional qualifications and legitimacy of
12 the President on behalf of the people.
13 The President cannot be held to be an impartial or dispassionate judge of his
14 own qualifications. In fact, the January 21, 2009, executive order sealing all of
15 President’s archival and personal records, previously submitted in this case, was, like
16 the order seizing steel mills in Youngstown, an order unsupported by any authority
17 deriving either from the Constitution nor any Congressional statute:
18 The President's order3 does not direct that a congressional
policy be executed in a manner prescribed by Congress -- it
19 directs that a presidential policy be executed in a manner
20 prescribed by the President.
21 343 U.S. at 588, 72 S.Ct. at 867, 96 L.Ed. at 1168 (1952).
22 Like the unconstitutional usurpation and exercise of power in Youngstown,
23 Barack Hussein Obama’s usurpation of the Presidency must be condemned for its
24 arrogant disregard of the Constitution.
25 Again using the insertion of paraphrasis from this critical case in brackets:
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Published in the Federal Register: January 26, 2009; Part VIII; The President;
27 Executive Order 13489—Presidential; Records; Executive Order 13490—Ethics Commitments
by Executive Branch Personnel Memorandum of January 21, 2009”.
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3 It cannot be contended that the President would have had power to
issue this [or any] order [or even to assume power at all] had [the
4 Constitution] explicitly negated such authority in formal [language].
[And yet in fact, the Constitution] has expressed its will to withhold this
5 power from the President [because] it [says] so in so many words. The
6 authoritatively expressed purpose of [the Constitution] to disallow such
… [a] President [to accede to power]. . . . could not be more decisive . .
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Id. at 343 U.S. 602, 72 S.Ct. 893, 96 L.Ed. 1175.
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Each and every Plaintiff in this lawsuit is at the very least a taxpayer and a
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citizen. The expenditure of funds by a President who is not constitutionally qualified
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is a new requirement imposed on the people of the United States. It is a clear and
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material change in the terms in the social contract (as well as the actual employment
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contract of all oath-taking officers and enlisted men and legislators who have sworn
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to uphold that Constitution) that a President can come into office, seal his records,
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and disclose nothing about his past or origins once they are challenged.
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Accordingly, in response to the Defendants Reply on page 4, ll. 9-17, Plaintiffs
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can and do allege that the Defendants have imposed upon the Plaintiffs a new,
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specific, and unconstitutional action that they are required to take in violation of
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their First Amendment right to petition for proof of constitutional eligibility and their
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Ninth Amendment reservation of sovereignty, and of the power to uphold the
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Constitution and see that the laws are faithfully executed by their delegate and
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trustee, the President of the United States. The point of allowing Flast v. Cohen
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taxpayer standing is precisely to correct the failures of the political system to abide by
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the plain letter and strictures of the Constitution. The challenge of what constitutes
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a “political question” immune from judicial review remains, in Plaintiffs’ eyes, quite
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simple: non-justiciable political questions are those where a policy choice and
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decision has been made within the Constitutional framework: e.g., to appropriate
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and allocate funds for additional nuclear submarines or a new national park. There is
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3 no political question involved in whether or not to enforce the First Amendment
4 separation of Church and State, it is strictly a matter of constitutional construction
5 and application. There is no political question involved in whether or not to enforce
6 the natural born citizenship requirements of Article II.
7 Exhibit A shows a letter from Senator Sessions from Alabama states that the
8 senator cannot get involved in the matter of eligibility due to the fact that the legal
9 actions were pending and ethics requirements prevent him from getting involved in
10 legal matters. Now the government is stating that the judiciary cannot address this
11 issue because it is a political issue and it needs to be resolved by the senators and
12 congressmen, the same senators and congressmen that didn’t want to get involved in
13 the first place because it is up to the judiciary. Absurdity of this argument is clear. As
14 Senator Sessions states his letter- legal matters need to be resolved by the judiciary.
15 Similarly Exhibit B shows quo warranto request filed with the attorney general
16 Eric Holder on March 1. Mr. Holder never responded in the period of seven months.
17 FREEDOM OF INFORMATION ACT: FORM, FUNCTION, & FUTILITY
18 In essence, there is a question of material fact regarding the sufficiency of
19 Plaintiffs’ allegations regarding compliance with the pre-requisites for suit under
20 FOIA. Captain Pamela Barnett has fulfilled the requirements in form and function.
21 FOIA is basically a form of inquiry designed to make private party investigations into
22 the Federal government easier and more accessible. More important, however, in
23 light of the executive orders entered on January 21, 2009, all proper FOIA requests,
24 like all other requests were and are FUTILE so long as the President’s executive
25 orders are allowed to stand (see footnote above).
26 But in practical effect and function, the undersigned counsel’s numerous
27 requests for information, including her letter to U.S.A.G. Eric Holder and the
28 Secretary of State of Kentucky (Exhibit C) constituted massive pre-filing diligence on
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3 the part of counsel. Plaintiffs ask the real Congressional purpose in enacting FOIA,
4 to open the doors or narrow the path to information? Plaintiffs contend that they are
5 entitled to use their year of investigations as the practical formal substitute and
6 functional equivalent of a formal FOIA requests originating in Orange County, and
7 that the failure to fill out specific forms should not defeat the right to know.
8 THE CONSPIRACY TO TAKE THE PRESIDENCY BY FRAUD in 2008
9 Exhibit D is a new report submitted by Susan Daniels, a private investiga-tor
10 out of Columbus, Ohio, who bolsters the previous investigation of Neal Sankey into
11 the social security number history of Barack Hussein Obama. The falsification of his
12 Social Security number does not in and of itself render Obama unqualified to be
13 President, but it does raise questions concerning his identity. With regard to Hillary
14 Clinton, Michelle Obama and Joseph Biden, the Plaintiffs submit that they still need
15 to amend their Complaint again adequately to state a claim under 18 U.S.C.
16 §1964(c) for racketeering in the 2008 election based, only in part, on multiple
17 instances of predicate act fraud by breach of the intangible right to honest services.
18 Exhibit D makes this more critical.
19 RHODES v. MACDONALD: MORE BUCK PASSING?
20 Even though Judge Land dismissed this case, he did so based on a theory of
21 abstention from involvement in internal military matters. Abstention clearly implies
22 that the existence of jurisdiction. Defendants overstate the significance of Judge
23 Land’s highly prejudicial comments. Plaintiffs, naturally disagree that Judge Land
24 lacked authority to construe the significance of the commissioned officer’s oath to
25 uphold the Constitution, and Plaintiffs’ disagree that Judge Land fairly evaluated the
26 international military perils created by an illegitimate commander-in-chief who
27 appears to have obtained his office by fraud. Judge Land, like the Defendants, quite
28 misses the point that all members of the U.S. military are subject to new, specific,
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3 and unconstitutional commands because obedience to any command, at the present
4 time, requires violation of their oath to uphold the Constitution. The government
5 under Obama is constitutionally illegitimate, and it is that crisis of legitimacy that
6 “create[s] a virtual engine of destruction of our Constitutional System”, not Plaintiffs’
7 suit to redress it.
8 The Defendants’ Motion to Dismiss should be denied in all respects and leave
9 to amend granted.
10 Respectfully submitted,
Thursday, October 1, 2009
11
12 /s/ ORLY TAITZ
By:________________________________
13 Dr. Orly Taitz, Esq., Attorney-at-Law
14 (California Bar 223433)
Attorney for the Plaintiffs
15 29839 S. Margarita Pkwy
16 Rancho Santa Margarita CA 92688
ph. 949-683-5411
17 Fax: 949-766-7036
18 E-Mail: dr_taitz@yahoo.com
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3 PROOF OF SERVICE 
4   I  the  undersigned  Charles  Edward  Lincoln,  being  over  the  age  of  18  and 
5 not a party to this case, so hereby declare under penalty of perjury that on this, 
6 Thursday,  October  1,  2009,  I  provided  facsimile  or  electronic  copies  of  the 
7 Plaintiffs’  above‐and‐foregoing  Plaintiffs’  Sur‐Reply  to  the  following  attorneys 
8 for the Defendants who have appeared in this case, in accordance with the local 
9 rules of the Central District of California, to wit: 
10 THOMAS P. O’BRIEN 
11 LEON W. WEIDMAN 
12 ROGER  E.  WEST  roger.west4@usdoj.gov  (designated  as  lead  counsel  for 
13 President Barack Hussein Obama on August 7, 2009) 
14 DAVID A. DeJUTE  David.Dejute@usdoj.gov 
15 GARY KREEP usjf@usjf.net 
16 FACSIMILE (213) 894‐7819 
17   DONE AND EXECUTED ON THIS Thursday the 1st day of October, 2009. 
18  
19 /s/ Charles Edward Lincoln, III 
 
20
Charles Edward Lincoln, III 
21 Tierra Limpia/Deo Vindice 
c/o Peyton Yates Freiman 
22 603 Elmwood Place, Suite #6 
Austin, Texas 78705 
23  
24 charles.lincoln@rocketmail.com 
Tel: (512) 923‐1889 
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Exhibit A: 
9
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December 2008 
Letter From 
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Senator Sessions of 
Alabama regarding 
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The need for judicial 
resolution 
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3
 
 
4
5
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Exhibit B: 
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15
Eric Holder 
Re: Quo Warranto 
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Case 8:09-cv-00082-DOC-AN Document 78 Filed 10/01/2009 Page 1 of 14

22 Like the unconstitutional usurpation and exercise of power in Youngstown,

24 arrogant disregard of the Constitution.

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